VG Bild-Kunst v Stiftung Preußischer Kulturbesitz.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:181
• Date: 09 March 2021
• Docket Number: C-392/19
• Celex Number: 62019CJ0392
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

9 March 2021 (*)

(Reference for a preliminary ruling – Intellectual property – Copyright and related rights in the information society – Directive 2001/29/EC – Article 3(1) – Concept of ‘communication to the public’ – Embedding, in a third party’s website, of a copyright-protected work by means of the process of framing – Work freely accessible with the authorisation of the copyright holder on the licensee’s website – Clause in the exploitation agreement requiring the licensee to introduce effective technological measures against framing – Lawfulness – Fundamental rights –– Article 11 and Article 17(2) of the Charter of Fundamental Rights of the European Union)

In Case C‑392/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 25 April 2019, received at the Court on 21 May 2019, in the proceedings

VG Bild-Kunst

v

Stiftung Preußischer Kulturbesitz,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice‑President, J.‑C. Bonichot, A. Arabadjiev, A. Prechal, M. Ilešič (Rapporteur), L. Bay Larsen, N. Piçarra, A. Kumin and N. Wahl, Presidents of Chambers, T. von Danwitz, M. Safjan, D. Šváby, I. Jarukaitis and N. Jääskinen, Judges,

Advocate General: M. Szpunar,

Registrar: M. Krausenböck, administrator,

having regard to the written procedure and further to the hearing on 25 May 2020,

after considering the observations submitted on behalf of:

– VG Bild-Kunst, by C. Czychowski and V. Kraetzig, Rechtsanwälte,

– Stiftung Preußischer Kulturbesitz, by N. Rauer, Rechtsanwalt,

– the French Government, by A.-L. Desjonquères and A. Daniel, acting as Agents,

– the European Commission, by T. Scharf, V. Di Bucci and J. Samnadda, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 10 September 2020,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

2 The request has been made in proceedings between VG Bild-Kunst, a visual arts copyright collecting society in Germany, and Stiftung Preußischer Kulturbesitz (‘SPK’), a German cultural heritage foundation, concerning the refusal of VG Bild-Kunst to conclude with SPK a licence agreement for the use of its catalogue of works unless the agreement contains a provision obliging SPK, as a licensee, to implement, when using protected work and subject matter covered by that agreement, effective technological measures to prevent the framing, by third parties, of such protected work or subject matter.

Legal context

European Union law

Directive 2001/29

3 Recitals 3, 4, 9, 10, 23 and 31 of Directive 2001/29 are worded as follows:

‘(3) The proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest.

(4) A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation …

…

(9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.

(10) If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia products, and services such as “on-demand” services, is considerable. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment.

…

(23) This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.

…

(31) A fair balance of rights and interests between the different categories of right holders, as well as between the different categories of right holders and users of protected subject matter, must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. Existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the internal market of copyright and related rights. Such differences could well become more pronounced in view of the further development of trans‑border exploitation of works and cross-border activities. In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.’

4 Article 3 of that directive, headed ‘Right of communication to the public of works and right of making available to the public other subject matter’, provides:

‘1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

…

3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’

5 Article 6(1) and (3) of Directive 2001/29, that article being headed ‘Obligations as to technological measures’, provides:

‘1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.

…

3. For the purposes of this Directive, the expression “technological measures” means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject matter, which are not authorised by the right holder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC [of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ 1996 L 77, p. 20)]. Technological measures shall be deemed “effective” where the use of a protected work or other subject matter is controlled by the right holders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject matter or a copy control mechanism, which achieves the protection objective.’

Directive 2014/26/EU

6 Article 16(1) and (2) of Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJ 2014 L 84, p. 72) provides:

‘1. Member States shall ensure that collective management organisations and users conduct negotiations for the licensing of rights in good faith. Collective management organisations and users shall provide each other with all necessary information.

2. Licensing terms shall be based on objective and non‑discriminatory criteria. When licensing rights, collective management organisations shall not be required to use, as a precedent for other online services, licensing terms agreed with a user where the user is providing a new type of online service which has been available to the public in the Union for less than three years.

Right holders shall receive appropriate remuneration for the use of their rights. Tariffs for exclusive rights and rights to remuneration shall be reasonable in relation to, inter alia, the economic value of the use of the rights in trade, taking into account the nature and scope of the use of the work and other subject matter, as well as in relation to the economic value of the service provided by the collective management organisation. Collective management organisations shall inform the user concerned of the criteria used for the setting of those tariffs.’

German law

7 Under Paragraph 19a of the Gesetz über Urheberrecht und verwandte Schutzrechte (Law on copyright and related rights), making available to the public work protected by copyright is subject to the authorisation of the right holders.

8 In accordance with the first sentence of Paragraph 34(1) of the Gesetz über die Wahrnehmung von Urheberrechten und verwandten Schutzrechten durch Verwertungsgesellschaften (Law on the management of copyright and related rights by collecting societies) (‘the VGG’), collecting societies are required to grant to any...